B-400149.3, Pond Security Group Italia, JV, December 22, 2008

Decision

Matter of: Pond Security Group Italia, JV

File: B-400149.3

Date:December
22, 2008

Paul
Reinsdorf, Esq., Reinsdorf & Associates, for the protester.
William J. Nelson, Department of the Army, for the agency.
Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the decision.

Pond Security Group Italia,
JV, a joint venture, of Vicenza, Italy, protests the nonresponsibility
determination of the Department of the Army under request for proposals (RFP)
No. W912PF-08-R-0015, for security guard services at United States Army Garrison
(USAG) locations in Italy.

We deny the protest.

The agency issued the RFP on April 8, 2008, seeking a contractor to provide security
guard services at USAG locations in Vicenza
and Livorno, Italy. According to the agency, for purposes of
contracting and business practices in Italy,
the U.S.
government is treated as a commercial enterprise and must ensure that its
actions conform to Italian requirements.
Contracting Officer’s Determination, at 1. Therefore, many of the contracts awarded by
the agency in Italy
contain unique requirements dictated by the Italian government. In the case of this RFP, offerors were required
to submit copies of specific necessary permits, licenses, and
certifications. As relevant here,
offerors were required to submit prefecture licenses to provide security
services. In the case of a joint
venture, this requirement was intended to apply to each member of the joint
venture.

On May 8, 2008, Pond filed a protest of the solicitation
with our Office, alleging that the terms of the RFP were unclear because some
of the licensing requirements were stated in Italian, that the licensing requirements
unduly restricted competition, and that, to the extent licensing requirements
applied to all companies in a joint venture, that requirement was unnecessary
under Italian law and contrary to commercial practices. The agency asserted that the licensing
requirements were mandated by Italian law, which specifically included the
requirement that all companies in a joint venture be licensed by the relevant
prefectures in order to provide security guard services. In its comments, Pond responded that the very
requirement that offerors submit prefecture licenses to provide security guard
services was unclear from the face of the solicitation.

Our review of the record revealed that the statement of
certain licensing requirements in Italian was not unclear, that the licensing
requirements were not unduly restrictive of competition, and that the
requirement that all members of a joint venture submit certain permits,
licenses, and certifications was not improper.
However, we agreed with the protester that the requirement for all offerors
to specifically submit prefecture licenses to provide security guard services
was not unambiguously stated in the RFP.

On July 22, our Office conducted an outcome prediction
conference call, in which we explained to the parties the conclusions that our
Office was mostly likely to reach in a written decision. As a result of that conference call, the
agency took corrective action. The
corrective action consisted of reopening the RFP, issuing amendment 4 to the
RFP to clarify the requirement for prefecture licenses, indicating that
offerors would be allowed to restructure if necessary to comply with the
licensing requirement, and setting a new proposal due date of August 8. On the basis of the corrective action, our
Office dismissed the protest as academic.

On August 8, Pond submitted a revised proposal which
removed one of the companies from its joint venture, but failed to include
copies of licenses to perform security services from the local prefectures for
any of the companies remaining in the joint venture. Accordingly, the agency found Pond ineligible
for award due to failure to submit required licenses and, on August 28, awarded
the contract to another firm. This
protest followed.

The RFP included a modified version of Federal Acquisition
Regulation (FAR) clause 52.212-1, Instructions to Offerors—Commercial Items,
which stated in relevant part:

The offeror shall submit with its
proposal all the documentation listed here below in order to be eligible for an
award. Failure to submit with the
proposal any of below listed required documents/certificates will be
cause for rejection of the initial proposal as not in compliance with the
requirement of the solicitation, if a determination is made to award the
contract based on initial proposals without discussion.[1] The offeror is discouraged from including
with its proposal any additional data or information not requested by this
solicitation.

RFP at 14. Among the list of documentation requirements,
the RFP, as modified by amendment 4, included the following requirement:

The offeror shall submit a copy of
their Prefecturer [sic] License to provide guard services (licenza
prefettizia) from the providence [sic] of which services are provided
and in accordance with Italian T.U.L.P.S. 134.
In the case of a joint venture, a copy of the license of each company in
the joint venture shall be submitted.

Amendment 4 at 1.

The agency and the protester agree that the requirement
for all companies in a joint venture to submit valid prefecture licenses to
provide security guard services constituted a definitive responsibility
criterion. Responsibility is a term used
to describe the offeror’s ability to meet its contract obligations. See FAR subpart 9.1. A contracting officer may not make an award
to a contractor unless the contracting officer makes an affirmative
determination of responsibility. FAR sect.
9.103(b). In most cases, responsibility
is determined on the basis of general standards set forth in FAR sect. 9.104-1, and
involves subjective business judgments that are within the broad discretion of
the contracting activities. Bryan L.
and F.B. Standley, B-186573, July
20, 1976, 76-2 CPD para. 60 at 5.

However, in some solicitations, as is the case here, an
agency will include a special standard of responsibility, referred to by our
Office as a definitive responsibility criterion. See FAR sect. 9.104-2. In effect, definitive responsibility criteria
represent an agency’s judgment that an offeror’s ability to perform in
accordance with the contract must be measured against specific requirements,
compliance with which at least in part can be determined objectively. The Mary Kathleen Collins Trust, B-261019.2, Sept. 29, 1995, 96-1 CPD para. 164 at 3. An offeror must show compliance with
definitive responsibility criteria as a precondition to award. Coastal Elecs., Inc., B-250718, Feb. 16, 1993, 93-1 CPD para. 144 at
6-7.

Pond asserts that the determination that it was not
responsible was unreasonable since the agency knew or should have known, had it
made any effort to gather more information, that each of the companies in
Pond’s joint venture possessed the required prefecture licenses. Specifically, Pond acknowledges that the
required licenses were not included in its proposal, but asserts that
regardless of the terms of the RFP, evidence pertaining to a definitive
responsibility criterion may be obtained at any time prior to the award, and
that the contracting officer was required to solicit further information on
Pond’s licensing before making a determination of responsibility. According to Pond, it was improper for the
agency to base its nonresponsibility determination solely on a “mechanical
review” of the documents in Pond’s proposal.

We agree with the protester that matters of responsibility
are to be determined at the time of award, and that regardless of the terms of
the RFP, information pertaining to the protester’s responsibility could have
been submitted at any time prior to award.
LORS Med. Corp., B-259829, B-259829.2, Apr. 25, 1995, 95-1 CPD para. 222 at 4. It is
well-established that the terms of a solicitation cannot convert a
matter of responsibility into one of proposal acceptability. SeeMobility Sys. and Equip. Co., B-243332, Apr.
25, 1991, 91-1 CPD para. 412 at 3.
However, we do not agree that the contracting officer was required to
seek out additional information pertaining to Pond’s responsibility, and we
conclude that the contracting officer properly determined that Pond failed to
meet a definitive responsibility criterion based on a review of the submitted
documents.

To the extent Pond argues that the agency was obligated to
contact it upon discovering that the prefecture licenses were not included in
its proposal, we disagree. An agency is
not required to contact an offeror prior to making its determination; a
contracting officer may base a negative determination of responsibility on
evidence in the record, without affording offerors the opportunity to explain
or otherwise defend against the evidence.
Victor Graphics, Inc., B-249297, Oct. 19, 1992, 92-2 CPD para. 252 at 3-4. It is the duty of the bidder to supply all
necessary documentation to establish its responsibility. Yellowhorse Indus., B-250282, Jan. 12, 1993, 93-1 CPD para. 35 at 4. More specifically, whether an offeror has
complied with a definitive responsibility criterion relating to the submission
of a specific license or certification is an objective determination that is
made on the basis of the documents submitted to the contracting officer prior
to the time of the award. SeeThe
Mary Kathleen Collins Trust, supra.

Here, in light of the RFP’s clear admonition that an
offeror was to submit all required documents with its initial proposal, and the
fact that Pond did not submit the required prefecture licenses with its
proposal or at any other time prior to award, we see no basis to object to the
agency’s determination that Pond failed to meet a definitive responsibility
criterion contained in the RFP.

The protest is denied.

Gary L. Kepplinger
General Counsel

[1]
The award in this procurement was made based on initial proposals, without
discussions.